McDuffee v. Kelsey , 312 Mass. 458 ( 1942 )

Lummus, J.

This is an action against one of the comakers of two promissory notes which were made in New York but were payable in Florida. The action is brought by the payee of one note and the indorsee of the other. At the trial in the Superior Court the judge found that the defendant made the notes, that a payment was made on them as late as January, 1931, within six years before the commencement of the action, and that the plaintiff is a holder in due course for value.

After a finding for the plaintiff, the defendant filed a bill of exceptions, and also claimed an appeal. The judge also reported the case.

The points raised by the defendant in this case are (1) that the notes were improperly received in evidence, and (2) that the notarial protests attached to the notes were improperly received in evidence.

No proof of signature was required, for the defendant, though denying the signatures, failed to demand proof of them, as required by G. L. (Ter. Ed.) c. 231, § 29. Scholl v. Gilman, 263 Mass. 295, 298. Auburn State Bank v. National Laundry Co. 289 Mass. 397, 398. The notes were properly received in evidence, and made out a prima facie case for the plaintiff. Auburn State Bank v. National Laundry Co. 289 Mass. 397, 399. Rogers v. Price, 293 Mass. 537. If the controlling law be that of Florida, which we do not intimate, it was not called to the attention of the trial court, and is presumed to be the same as the common law of Massachusetts. Seemann v. Eneix, 272 Mass. 189, 195, 196. We see no error under that law in the admission of the notes and protests. No question as to the Florida statute of limitations was open, for though a statute of limitations was mentioned in the answer, the Florida statute of limitations was not specifically pleaded. See Lennon v. Cohen, 264 Mass. 414, 422. Plainly the Massachusetts statute did not bar the action, in view of the payment made within six years. Protest was immaterial, for the nonpayment of the notes at maturity established the liability of the defendant as maker. Farmers National Bank of Annapolis v. Venner, 192 Mass. 531. Forastiere v. Springfield Institution for Savings, 303 Mass. 101, 102.

The appeal was not within G. L. (Ter. Ed.) c. 231, § 96, and must be dismissed. The whole case may be disposed of on the report, without considering the bill of exceptions. On the report, judgment is to be entered for the plaintiff on the finding.

So ordered.